Villareal v. State

• Citation: 275 S.W. 835
• Decision Date: 11 February 1925
• Docket Number: (No. 8080.)
• Parties: VILLAREAL v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

275 S.W. 835

VILLAREAL v. STATE.

(No. 8080.)

Court of Criminal Appeals of Texas.

February 11, 1925.

Rehearing Denied October 7, 1925.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Fidel Villareal was convicted of burglary, and he appeals. Affirmed.

Joe H. H. Graham, of San Antonio, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Hays county of the offense of burglary, and his punishment fixed at two years in the penitentiary.

The store burglarized was located at Uhland, a little town some 12 miles from San Marcos, the county seat of Hays county. That a burglary was committed and a quantity of clothing, shoes, waists, and dress goods material were taken is not disputed. A clerk in said store testified that he saw a man in the store the afternoon before the night of the burglary just like appellant. It was in testimony that, when the burglary was discovered in the morning after same was committed, there were tracks of two men going side by side out to a point where a car had stopped. This car was tracked to where it entered the highway going in the direction of San Marcos. The party doing the tracking said he found another track beside the two mentioned which looked as though it was walking along on the side of the road down which the car went. The imprint of this track was not quite as plain as the others. A woman named Garcia testified that appellant came to her house with a sack containing three georgette waists, one pair of shoes, one suit of men's clothes, and two pieces of goods. She said appellant stated that he wanted to leave the clothes in the house. This witness also stated that the day before appellant brought these articles to her house she saw him and her brother Sebastian Machado in an old Ford car. Officers testified that after the burglary they found in Machado's house a part of the goods that were taken out of the burglarized store, and which were afterwards identified by the proprietor. These goods were found in Machado's house a few days after the burglary. The officers also found, at the home of the Garcia woman, several ladies' waists and some dress goods and one suit of clothes. A written statement made by appellant after he was arrested and duly warned, which was signed by him in the presence of witnesses, was introduced in evidence by the state. In it was an admission that on the night in question he went in a Ford car with Machado and the husband of the Garcia woman up to a point at the foot of a hill not far from Uhland. He claimed that at this point he declined to go any farther, and that Garcia and Machado got out of the car and left. He said that all three had started to Uhland to take part in a gambling game there. He further claimed that after the men left him he lay down in the car and went to sleep, and that they came later, waked him, and that they had a sack which they claimed to contain things they had won in the gambling mentioned. He said they gave him some of the articles, and that he took them to San Marcos and gave them to a woman at the house of one Gonzales.

We perceive no error in admitting in evidence the written statement of appellant. The fact that there were exculpatory matters stated therein, and that the whole confession was put in evidence by the state, would not render it inadmissible. The court below gave a special charge telling the jury that the state would be bound by the exculpatory part of said confession, unless its falsity was shown by other evidence.

There is a bill complaining of the refusal of a peremptory charge, which we think presents no error. Nor do we perceive any error shown in the exceptions taken to the court's charge.

The evidence showing that appellant was with the other parties on the night of the alleged burglary, and that he turned up the next day with a part of the stolen property in his possession, would seem to justify the submission of the case to the jury on the law of principals. Several of the exceptions taken to the charge evidently resulted in changes therein. The court gave a special charge requested by the appellant on circumstantial evidence.

Bill of exceptions No. 4 is leveled at the charge for failure to submit an affirmative presentation of defendant's theory of the case, and also to the court's refusal of a special charge referring to the written statement made by appellant, and in which the jury were told that, though they might believe from said statement that appellant received and disposed of all or of part of the property taken from the burglarized premises, they could not convict him upon this testimony for receiving and concealing stolen property, that they must believe him guilty of burglary as defined. We think there was no likelihood of the jury convicting appellant of receiving and concealing stolen property, and, unless this was true, there was no need of giving the special charge.

Bill of exceptions No. 5...